Chopp’s “Statement of Principles” is Anti-Union

To be up to date on the issues discussed in this op-ed, please refer to President Chopp’s “Statement of Principles” and Swarthmore Labor Action Project (SLAP)‘s “Memorandum of Understanding at Town Center West,” both of which were published as op-eds on The Daily Gazette.

As a lawyer who has represented labor unions since I moved to Philadelphia in 1976, I have more than a passing familiarity with the issues that have been discussed last spring in The Daily Gazette and on the Swarthmore campus with regard to the possible unionization of the employees at any inn established by the College and therefore have the following comments:

The suggestion – raised by certain Swarthmore Borough residents – that it was somehow improper for the Swarthmore student group SLAP to conduct what proved to be a successful petition drive that might doom or otherwise interfere with the proposed inn simply ignores the manner in which management-labor relationships work in this country. It is simply a question of leverage, with parties using the political and economic tools available to them to extract agreements. In the United States today, that means that unions must utilize all lawful tools to level what is otherwise a playing field tilted by law, money and power in favor of employers.

More important, I suppose, the position statement issued by Swarthmore College President Rebecca Chopp, while subtly worded, was not only anti-union and, patronizing, but a rather disturbing example of intellectual dishonesty. While the statement gave lip-service to the concept that the College does not want to interfere with the choice of its employees, the statement (and presumably the position of the College) it is really aimed at insuring that in fact employees cannot really exercise that choice in a meaningful fashion, free from any employer pressure. While the statement may be devoid of overt anti-union sentiments in fact it really contains nothing more than the standard canards offered by employers who reject union efforts to insure neutrality. Employers often assert they are not campaigning but nonetheless reserve the right to do just that. As a matter of intellectual honesty, it would have been better had the College simply admitted the truth, that it does not want a union at the inn, presumably because it does not want a union anywhere at the College. Avoiding unionization is clearly the College’s goal but presumably, President Chopp and the Board of Managers are reluctant to say so in order to avoid offending alumni and members of the College community who take seriously the concept of what have been characterized as “Swarthmore values.”

In this day and age, employees have access to all sorts of information about union representation. The suggestion in President Chopp’s statement that workers cannot obtain such information is somewhat insulting. Workers are generally capable of obtaining information and, moreover, are the individuals best capable of making judgments as to what is good for them, free of any coercion or pressure from the one entity, i.e., their employer, who, on a day-to-day basis currently controls the terms and conditions of their employment.

A neutrality agreement (and that is the key, not a card count) would hardly interfere with the right of workers to initiate their own union efforts on their own timetable. Ultimately, any union will have to persuade workers to choose representation.

The statement by President Chopp that a neutrality agreement “prohibits [workers’s] ability to discuss such issues with managers if they wish to do so” really says it all about the College’s position. The College’s real concern here is that it will not have the ability to campaign against a union. Moreover, neutrality agreements generally deal with this issue as to what should or can be said, something President Chopp and the Board of Managers conveniently ignore.

The suggestion that a neutrality agreement would result in the College somehow picking the union which would represent the employees of the inn deliberately ignores labor reality. The fact is that there really is no other labor organization that specializes in representation of employees at hotels and restaurants in this area. (I am sure there are exceptions in, for example, Hawaii and the U. S. Virgin Islands but, by and large, UNITE HERE is the labor organization in this field). The College’s objection therefore, the equivalent of the operator of a steel mill rejecting a neutrality agreement with the United Steelworkers for the same meritless reason and, is nothing more than an attempt to rationalize the College’s refusal to enter into a neutrality agreement with one labor organization that does wish to represent employees at the proposed Inn.

Were the College willing to enter into a neutrality agreement, it could (and probably should as a matter of law) be compelled to include in such agreement a provision that any other labor organization seeking to represent the same group of employees could become a party to that agreement. Yet the College attempts to hide behind the suggestion, promulgated, I would note, by many management representatives when faced with demands for neutrality agreement, that entry into a neutrality agreement ends up selecting the union that would represent employees. As the history of neutrality agreements reveals, such a contention is simply nonsense.

Clearly, the College has no interest in offering anything other than lip service to its supposed principles. Ultimately, its pastiche of clichés, so closely hewing to statements I have seen from other employers that one is compelled to believe that the statement was written by a group of management lawyers, gives the lie to the suggestion that Swarthmore College is an employer any different from most other employers in this country.

Yours truly,

Jonathan Walters

336 N. Princeton Avenue

Swarthmore, PA 19081

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First I would like to warmly praise the staff of the Daily Gazette for having the journalistic integrity and commitment to a balanced discussion of the issues to print Mr. Walter’s expert opinion piece. Our local paper, the Swarthmorean, refused to print a similar letter on the basis that it was more than their 500 word limit and then turned right around and published a more than 800 word opinion letter supporting the College administration’s position as an “editorial,” something they had never before done in the almost three decades I have been reading that paper, rather than let the community read a challenge submitted by a person with great expertise to the College administration’s point of view, a point of view that the Swarthmorean had published repeatedly in numerous long articles unconstrained by the word limit they apply to all other persons submitting opinions.

Regardless of whether one accepts Mr. Walter’s arguments, it is incontrovertible that
College administration mischaracterized the law regarding the employees’ right to a private ballot after a card check when it stated: “SLAP prefers a “card check” method of organizing and a commitment to a particular union without the right to a private ballot.”

Under Dana Corp., 351 NLRB No. 28 (2007), the current interpretation of the law by the National Labor Relations Board, any time within 45 days after a union has been recognized by an employer pursuant to a card check agreement, employees can petition the NLRB to hold an election if they want to vote the union out. The NLRB will then hold that secret ballot election assuming at least 30% of the employees sign the petition.

How do I know this? I am a lawyer, but no, I’m not a labor lawyer like Mr. Walters.

The reason I know this fact, and it is a fact, not an opinion, was that it was explained during the superb panel discussion on labor law that the College held on March 2, 2012 in the finest intellectual tradition of what Swarthmore College should be and has been about. (The College deserves the warmest thanks for convening this panel and giving the entire community, town and gown, this opportunity to educate themselves on this issue. I learned an incredible amount that evening.)

The saddest thing of all about this is that College administration published this self serving mischaracterization of the law, and consequently of SLAP’s position on this issue, not before, but AFTER, attending this panel discussion.

And Danielle C. above wonders why Mr. Walters was moved to write his letter. Res ipsa loquitur. Perhaps if she rereads Mr. Walter’s letter, more carefully this time, it will become clear to her.

Thank you, Mr. Walters, for taking the time to present this much needed point of view, informed by your long experience and expertise in this field.

Again, neutrality agreements aren’t neutral. It is not in the College’s interest in the least to sign a contract promising silence. Colleges are not a traditional business. It seems dangerous to have unions potentially leveraging not just against the inn, but other college resources and the endowment.

And the author misleads the conflict between SLAP students and borough residents. I know many residents were confused and insulted that they were duped into signing a petition that essentially counteracted the College and the town’s previous decisions. Many town residents felt that this reflected very poorly on the student body.

The administration and Board of Managers carefully considered SLAP’s suggestions last spring, but ultimately decided otherwise. It’s time to put this issue behind us.

Also, am I the only one disturbed by the fact that an attorney outside the campus community feels it necessary to attack our school’s administration in such a vitriolic tone?

While colleges may not be traditional businesses, all types of managers try to minimize costs. Most everyone agrees that this school is run like a business, and the President’s response to calls for a neutrality agreement shows the worst of that.

True–but if we’re going with the whole Swarthmore-is-a-business thinking, than I’m certainly a customer hoping Swarthmore is smart about its expenses. Yes, I want a place that is fair and just to its employees. I think Swarthmore meets the fair & just criteria pretty well–so I’m confused why we need a big Philly union to give up pointers.

There are so many problems with this op-ed. The author primary problem is this: The author needs (1) for readers to care about any of his other arguments. But the literature has no consensus on (1). He might have a bunch of anecdotes in his pocket, and I’m sure he can find some favorite papers, but, if he were interested in intellectual honesty, as he claims, then he wouldn’t contend (1) without qualification the persistence of a not-level playing field.

Whoops! I’m sorry, but i just realized that I left out the main argument of my last post.

While Swarthmore College is a better employer than many, it is not better than many comparable unionized jobs. Therefore, the original op-ed’s claim that the administration is anti-union makes a lot of sense because the college has something something lose from a neutrality agreement.

Don’t take my word for it. When our new HR Director was at Colgate, she said, “The university would prefer that we not have to have a union because, in my personal view, the unions take away some of the individual voice of employees.”

If you read the last couple of comments and are about to write, “Wait, but Swarthmore has a living wage,” then my comment is for you.

After a 5-year campaign that brought together students, staff, and faculty, President Bloom and the Board of Managers relented and passed President Bloom’s “(Current) Proposal on Staff Compensation” See http://www.sccs.swarthmore.edu/org/living_wage/bloomcurrent.html for his proposal. Given that this was a 5-year struggle, you’d be correct in assuming that the campaign did not get a lot of what it wanted.

What’s much more surprising is that some of the major recommendations put forth by the informed, diverse, and consensus-based Ad Hoc Committee on the Living Wage were not implemented. For example, Bloom’s proposal only paid lip service to child care costs: “The College recognizes the serious burden that child care expenses place on employees but at this point is not able to commit further resources to assist with this financial burden.” If you would like to read the full proposal put forth by the Ad Hoc committee, please look here. http://www.swarthmore.edu/Admin/reports/LWReport7.Feb04.pdf

Furthermore, since the proposal was passed, the Benefit Bank has lost funding. The original cuts came during the when the endowment was low at the beginning of the great recession. Today, the endowment is back to pre-crisis levels, and there’s no public talk about reinstating the Benefit Bank. Throughout history, employers have used recessions as means to extract hard-won benefits from workers. Workers often must fight to get their wages and benefits back.

In many other ways, the Swarthmore has not maintained its commitment to a living wage, but I’m writing a comment and not an editorial.

Two quick final points. First, it’s hard to say that that the administration has violated the “living wage policy” because there is NO public living wage policy. The only proposal (that I know of) that the Board of Managers ever accepted about increasing staff compensation in recent memory was the one I posted above. It does not ever mention the idea of a living wage except when it mentions the Ad Hoc Committee. It appears as though Bloom and the BOM were not willing to commit to the idea of a Living Wage and that they only wanted to pacify the campaign. The language in Bloom’s proposal is extremely ironic given how the current administration loves to hold up the living wage as an example of our values.

Second, I’m only a student and while I talk to staff very regularly, I do not have an exhaustive knowledge about how the spirit of the Ad Hoc Committee’s report and President Bloom’s proposal have been violated.

Thanks for calling the college out on this one. It’s disgusting the way the administration manipulates “Swarthmore’s values” to commit heinous acts against workers, and it’s great to see an article publicly pointing that out. I’m glad that people outside the college community are paying attention and holding the college accountable. Thanks, and thanks again!

it is so good to see someone from outside the college calling attention to this. criticism of the way the college is going abut the inn is not “students being students” and naively finding problems in anything and everything. this is a serious issue that president chopp and the inn planners need to concretely address before going forward.